APPELLATE  COURT  OF  ILLINOIS. 


FOURTH     DISTRICT. 


Jiilv   Tei-iii   .A..    T>.   IS^O. 


WM.  H.   POWEL,  ct  al, 

Appeal  from 

^'''  ^  ^t.  Clair  Co. 

r.OARD  OF  DIRECTORS  OF  SCHOOLS.  " 


r/^r^*r"A 


ii^JJ"  /"X'^t^ .    ^ 


APPELLATE  COURT  OF  ILLINOIS. 


FOURTH     DISTRICT. 


JiiU    TTerm   J^,    I>.   1880. 


WM.  H.  POWEL,  et  al. 

vs. 


BOARD  OF  DIRECTORS  OF  SCHOOLS.  ] 


/  Appeal  from 
[St.  Clair  Co. 


BRIEF  OF  APPELLEES  COUNSEL 

Bill  alleges  that  complainants  are  owners  of  real  and 
personal  property,  subject  to  taxation  for  common  school 
purposes  within  the  corporate  limits  of  School  District 
Number  4,  in  Township  1,  N.  R.  8  W.,  in  St.  Clair  County, 
containing  not  less  than  twelve  thousand  inhabitants.  That 
the  School  Board  of  that  District  has  levied  taxes  &c.,  and 
controls  the  same  for  the  purpose  of  giving  the  children  of 
said  district  a  good  common  school  education. 

That  said  Board  has  no  power  to  prescribe  any  studies, 
other  than  the  branches  of  education  prescribed  in  the 
qualification  for  teachers,  to-wit :  Orthography  &c.,  and 
such    other    branches  of  an  English  education,   including 

.'«)'r>B'i.o 


2 

vocal  music  and  dniwing,  as  the  said  lioard  of  Education 
or  the  voters  of  the  district  at  the  annual  election  of  Di- 
rectors may  prescribe. 

Complainants  further  allege  that  saitl  Board  without 
authority  are  using  the  common  schools  of  said  district  for 
instruction  in  the  branches  of  a  German  education  and  have 
employed  teachers  to  teach  and  are  teaching  in  said  schools 
German  Orthography,  German  Reading,  German  Penman- 
ship and  German  Grammar,  and  are  misappropriating  and 
diverting  the  common  school  fund  to  the  teaching  of  said 
German  branches. 

Complainants  further  represent  that  said  Board  of 
Education  have  employed  a  large  number  of  teachers  on 
account  of  the  qualification  to  teach  said  branches  of  a 
German  education  and  are  paying  said  teachers  out  of  the 
School  Fund.    That  this  is  against  public  policy  and  void. 

The  bill  then  calls  for  an  answer,  and  puts  a  number 
of  specific  questions,  viz  : 

1.  Give  the  name  of  teachers  and  what  salary  each 
gets. 

2.  Give  names  of  teachers  which  instruct  in  the 
branches   of    a  German  education. 

3.  What  studies  are  taught  in  said  schools  in  the 
German  language,  by  whom  taught?  the  salary  paid. 

4.  How  manv  children  are  instructed  in  the  German 
lany^uage. 

5.  How  many  pupils  in  the  schools  receive  instruct- 
ion in  the  German  language  only. 

How  many  German  classes  are  there  in  said  schools, 
and  how  much  time  is  diverted  to  each  class  each  day  for 
instruction  in  German. 

Bill  concludes  with  i)rayer  of  an  injunction  against 
the  Directors  to  permit  or  to  cause  any  branch  of  a  Gernuin 
Education  to  be  taught  in  said  schools  and  to  pay  directly 
or  indirectly  out  of   the  common  school   fund  derived   by 


t!5 

■3- 


3 


taxation  for  the  support  of  the  coniinon  schools  of  said 
district  any  money  &c. 

The  answer  is  very  full  as  to  all  the  questions  asked, 
and  shows  that  the  learning  of  German  is  optional,  that 
about  90  per  cent  of  all  the  pupils  attend  the  German 
lessons.  That  German  has  been  taug-ht  for  the  hist  15 
years  in  the  Belleville  schools.  That  the  peof)le  by  a  large 
majority  at  the  last  election  of  directors  approved  of  the 
teaching  of  German,  that  no  pupils  receive  lessons  in 
German  only,  that  the  teaching  of  German  does  not  add  to 
the  costs  of  the  school  and  does  not  increase  taxation,  that 
all  teachers  capable  of  instructing  in  German,  teach  also 
the  English  branches  in  their  respective  classes. 

That  one  hour  per  day  is  devoted  to  the  German, 
except  in  the  lowest  grade,  where  but  thirty  minutes  are 
allowed  for  the  teaching  of  that  language. 

Answer  denies  that  the  Board  are  acting  without 
authority. 

Bill  dismissed  by  Circuit  Court  on  hearing. 

Appeal  taken  by  Complainants. 

The  answer  not  being  controverted  and  therefore 
taken  as  true,  leaves  really  but  one  fact  to  consider,  upon 
which  complainants  can  rest  their  complaint,  and  that  is, 
that  the  Board  of  Directors  have  allowed  the  teaching 
of  the  German  language  to  be  one  of  the  branches  of  the 
education  in  the  schools  of  the  districts. 

We  will  premise  here,  that  the  bill  seems  to  proceed 
upon  the  idea,  that  the  means  for  the  support  of  schools 
are  solely  derived  from  taxation,  to  which  they  as  citizens 
of  the  district  in  question  contribute.  But  this  is  a  mistake. 
Congress  has  granted  to  each  township  in  the  State  of 
Illinois,  the  16th  Section  for  the  use  of  schools,  and  this 
section  has  been  sold  and  the  proceeds  thereof  constitute 
part  of  the  school  fund.  Congress  has  besides  granted  to 
the  State  three  fifths  of  five  per  cent  of  the  net  proceeds  of 


tlie  laiKl.'^  lying  within  the  Stutc,  arising  from  sales  of  such 
land  since  18H>,  to  be  appropriated  by  the  legislature /or  the 
ejicouragement  of  learning  which  fund  has  accumulated" 
to  a  very  large  amount,  and  has  been  increased  by  the 
Surplus  Revenue  distributed  by  act  of  Congress  amongst 
the  different  States,  and  the  interest  of  which  sums  com- 
bined is  annually  distributed  to  the  different  counties  of 
the  State,  in  [)roportion  to  the  number  of  children  in 
each  County. 

There  can   Ijc  no  question  that  the  Legislature  could- 

use  those  funds   for   any    kind    of  schools,   they  thought 

l)roper   to  establish,   there    l)eing   no  limitation    in    those 

congressional  grants  as  to  the  character  of  those  schools. 

We  will  further  premise  that  complainants  seem  to  be 

•  under  the  impression  that  by  common  schools  such  schools 

are   meant  in    which  onlv    the  rudiments    of   learninij  are 

taught.     But    common  schools    do  not   mean  elementary, 

primaiy  schools,    schools    for  common    people,  but  means 

schools  open  to  all,  as  opposed  to  private  schools.     Webster 

defines    a  connuon   school:   "A  school    maintained    at  the 

public  expense  and  open  to  all."  The  word  common  has  no 

reference  to  the  grade  of  schools  and  kind  of  studies  to.  bo 

taught.  "Common"  is  belonging  to  the  public,  not  private  or 

exclusive,  as  we  speak  of  "commonwealth,  common  good." 

It  is  a  matter  of  history  that  the  "common  schools" 

established    by    the  Puritans  in    New    England    were    of  a 

superior   order,   and   that  many  l)ranches,   latin  included, 

which    now    a    days    are    relegated    to  high    schools    and 

accademies,  were  taught  therein. 

As  under  our  school  law  persons  up  to  the  age  of 
twenty-one  years  may  avail  themselves  of.  the  instruction 
imparted  in  our  common  schools,  it  would  appear  almost 
absurd  to  suppose  that  nothing  but  the  bare  rudiments  of 
learning  could   be  acquired  in  these  institutions. 

If  we  now  turn  to  the  provisions  of  our  school  law 


(Revised  Statutes,  1874,  p.  9(i3,  §  48  and 50)  we  findin  sect. 
48,  "that  the  school  board  shall  direct,  what  branches  of 
study  shall  he  taught,"  and  in  sect.  50,  "that  every  school 
established  under  the  provisions  of  this  act  shall,  be  for  the 
instruction  in  the  branches  of  education  prescribed  in  the 
qualiiication  for  teachers,  and  in  such  other  branches,  in- 
eluding  vocal  7nusic  and  drawing,  as  the  directors  or  the 
voters  of  the  district  at  the  annual  election  q/  directors  may 
prescribe.''' 

In  order  to  overcome  these  plain  provisions  of  the  statute 
while  citing  them  in  their  bill,  the  complainants  interpolate 
into  the  latter  clause  of  the  passage  just  mentioned  bj^us,  the 
words  :  of  an  English  education,  so  as  to  make  the  law 
read  :  and  in  such  other  branches  of  an  English  education, 
as  the  directors  may  prescribe. 

But  even  if  the  law  did  read  that  way,  we  do  not  see 
that  it  would  help  their  case  much.  Do  all  schools,  colleges, 
universities  in  the  United  States,  or  in  England  become  un- 
english,  latinised,  germanised  or  gallicised,  because  in  all 
these  institutions  of  learning,  a  few  or  even  many  hours  in 
the  week  are  set  apart  to  the  studying  of  ancient  or  modern 
lansuao-es?  The  fact  is  that  education  while  it  does  furnish 
a  certain  and  always  limited  amount  of  positive  knowledge, 
has  to  deal  principally  with  the  training  and  disciplining  of 
the  mind,  so  as  to  make  it  a  fit  instrument  for  the  recept- 
ion and  digestion  of  higher  knowledge  in  riper  years,  and 
for  analysing  and  putting  to  use  such  acquired  knowledge. 
There  is  no  such  thinff  as  an  eno-lish  or  an  american  or  a 
french  education  otherwise  than  that  instruction  is  imparted 
in  every  country  in  its  own  language.  It  has  been  a  mooted 
question  amongst  schoolmen,  whether  mathematics  or  the 
learnino;  of  a  foreion  lan2;uao;e,  when  scientificallv  and 
rationally  taught,  are  more  apt  to  sharpen  the  juvenile 
mind.  But  all  aoree  that  either  does  to  a  more  or  less  ex- 
tent.     If  it   should   so    happen,    that  the  possession   of  a 


6 

foreign  huigutigc  would  also  be  of  very  great  direct  uiid 
practical  advantage  on  account  of  its  being  extensively  used 
in  the  country,  the  1)enetit  of  instruction  in  such  a  language 
can  hardly  be  overrated.  The  propriet}'^  of  teaching  a  for- 
eign language  and  the  decision  as  to  which  should  i)e  sel- 
e{jted,  are  matters  of  judgment  with  the  board,  and  that  they 
have  exercised  in  this  case  their  judgment  soundl}'  seems 
to  appear  from  the  fact,  stated  in  the  answer,  that  90  per 
cent,  of  all  the  children  in  the  Belleville  schools  take 
irerman  lessons,  while  the  attendance  to  such  lessons  is 
purely  optional  with  the  parents  or  pupils. 

The  Supreme  Court  of  Illinois  has  had  occasian  to  pass 
upon  the  powers  of  school  boards  in  several  instances,  and 
its  decisions  were  altogether  in  favor  of  leaving  to  such 
boards  a  verv  larjje  discretion. 

In  the  case  of 

Rulison  et  al.  vs.  Post,   79  111.,  5fi7, 

the  Supreme  Court  decided  that  pupils  could  not  be  com- 
pelled to  attend  instructions  in  other  and  higher  branches, 
than  those  enumerated,  but  that  such  attention  must  be 
left  optional  to  the  parents  or  guardians,  but  the  Court 
said  at  the  same  time,  "that  the  school  board  may  undeni- 
ably require  the  teacher  to  impart  instruction  in  other  and 
higher  branches." 

The  school  board  having  by  the  act  of  the  legislature 
power  to  direct  what  other  and  higher  branches  should  be 
taught  in  our  public  schools,  the  Courts  have  no  control 
over  the  matter,  and  have  no  authority  to  designate  what 
shall  or  shall  not  be  taught  in  the  schools  under  the  charge 
of  that  board,  or  to  direct  what  the  board  shall  do  or  leave 
undone  in  their  manaoement  of  the  schools. 

The  question  of  the  power  of  the  (\)urts  to  interfere 
Avith  the  discretion  exersised  by  school  boards  under  a  law 
similar  to  our  own  came  up  in  Missouri  in  the  case  of  Roach 


vs.  the  board  of  President  and  directors  of  the  St.  Louis 
Public  Schools. 

That  board  acts  under  a  special  charter,  and  its  powers 
are  hiid  down  in  terms  general  indeed,  but  not  as  broad  as 
those  in  our  own  school  law  relating  to  school  directors.  It 
is,  to  have  charge  and  control  of  the  Public  Schools  of  the 
City  of  St.  Louis  ;  to  make  all  rules,  ordinances  proper  for 
the  management  of  such  schools,  so  that  the  same  be  not 
inconsistent  with  the  laws  of  the  land. 

Yet  the  Circuit  Court  of  St.  Louis,  as  well  as  the 
Appellate  Court  for  the  St.  Louis  District,  upon  a  bill  for 
an  injunction  to  enjoin  the  Board  from  teaching  the  higher 
brandies  of  education,  including  ancient  and  modern 
languages,  particularly  tlie  German,  decided  that  the  plain- 
tiff had  no  standins;  in  Court  and  dismissed  the  bill. 

The  opinion  in  the  Appellate  Court  was  delivered  by 
Judge  Hayden,  and  is  a  very  able  one.  In  the  course  of  it 
the  Court  says:  "The  complaint  in  jjoiut  of  fact  is  not 
that  the  defendant  (the  school  board)  is  not  using  its  fund 
or  exersising  its  powers  for  the  support  of  schools,  but  that 
the  defendant  is  teaching  the  children  who  attend  its 
schools  more  than  the  plaintiff  thinks  should  be  taught  in 
the  public  schools.  But  the  plaintiffs  presents  no  standard 
by  w^hich  the  courts  can  proceed.  The  precision  and  uni- 
formity which  judicial  action  demands  find  no  basis  in  the 
notions  of  any  given  plaintiff,  however  well  supported  by 
argument,  as  to  what  constitutes  a  proper  education  to  be 
given  in  the  jiublic  schools.  But  into  such  notions  and  into 
considerations   of  policy   and   expediency,   the  case   of  the 

plaintiffs  resolves  itself." "The  extent  to  which  it  is 

advisable  to  educate  the  people  does  not  address  itself  to 
the  courts,  but  to  the  people  themselves,  and  if  they  put 
the  power  in  the  hands  of  particular  officers  or  boards,  and 
it  is  exercised  as  conferred,  the  fact  that  the  power  is  ex- 
cessive is  no  aro;ument  against  it." 


8 

The  stinie  question   ciune  before  the  8upreim'  Court  of 

Ohio. 

Board  of  Education  vs.  Minor,  28  Ohio  8t.  211. 

The  hiw  governing  the  public  schools  of  CJincinnati  pro- 
vides that  the  board  of  education  "shall  have  the  super- 
intendence of  all  the  schools  in  said  city,  organised  and 
established  under  this  act,  and  from  time  to  time  shall 
make  such  regulations  for  the  government  and  instruction 
of  the  children  therein  as  to  them  shall  appear  proper  and 
expedient,  and  generally  do  and  perform  all  matters  and 
things  pertaining  to  the  duties  of  this  said  office,  which  may 
be  necessary  and  proper  to  promote  the  education,  morals 
and  ijood  conduct  of  the  children  instructed  in  said  i)ublic 
schools."  (See  opinion  p.  240.)  The  C'ourt  held  that  it 
had  no  right  to  interfere  with.the  action  of  the  board,  and 
whether  said  board  enacted  wise  or  unwise  regulations,  or 
whether  they  should  or  should  not  be  compelled  to  adopt  a 
certain  course,  was  for  the  legislature  to  determine  and 
that  the  Courts  had  no  power  to  interfere. 

In  a  very  late  case  decided  by  our  Supreme  Court, 
McCormic  vs.  Burt,  opinion  filed  March  17.  1880,  not  yet* 
reported,  the  Court  in  respect  to  the  power  and  authority 
of  the  Directors  of  School  districts  say  :  "What  rules  and 
reo-ulations  will  best  promote  the  interests  of  the  school 
under  their  immediate  control,  and  what  branches  shall  be 
tauoht,  and  what  text  books  shall  be  used,  are  matters  left 
to  the  determination  of  the  directors,  and  must  be  settled 
by  them  from  the  best  lights  they  can  (rbtain  from  any 
source,  keeping  always  in  view  the  highest  good  of  the 
whole  school."  The  Court  proceed  to  say  "that  in  such 
matters  they  act  judicially  in  a  matter  involving  discretion 
in  relation  to  the  duties  of  their  office." 

We  do  not  wish  however  to  be  misunderstood.  While 
we  contend  upon  the  best  authorities  that  free  schools,  or 
even  if  the  words  were  used  common  schools,  do  not  mean 


primary  or  rudinientHry  schools,  3'^et  they  mean  schools, 
as  contradistin^iiuisheci  from  academies  and  universities, 
where  a  purely  clat>sical  or  scientific  course  of  studies  is 
pursued.  If  oui-  schools  were  attempted  to  be  converted 
into  such  institutions  by  school-boards,  they  would  exercise 
their  discretion  unreasonably,  and  their  action  might  be 
questioned  in  the  judicial  forum. 

But  under  precisely  similar  laws,  and  some  not  as 
strong  as  ours,  the  trerman  lansuaoe  for  instance  has  been 
taught  for  many  years  past  in  a  great  many  cities  and 
towns  in  this  Union,  such  as  New  York,  Buffalo,  Cleve- 
land, Cincinnati,  8t.  Louis  and  many  others  that  might  be 
named. 

The  sections  under  consideration  have  received  a  con- 
struction by  Newton  Bateman,  for  many  years  Super- 
intendent of  Public  Instruction  in  our  State.  He  published 
in  1865  the  School  Laws  of  Illinois  with  the  official  and 
judicial  decisions  in  relation  to  common  schools.  On  page 
126  of  this  publication  he  lays  it  down  that  the  instruction 
imparted  in  our  public  schools,  must  be  so  imparted  through 
the  medium  of  the  enalish  lansuage  and  no  other.  "But," 
continues  he  (page  127),  "lest  the  foregoing  provisions 
should  be  misunderstood  or  misapplied,  this  section  (50) 
closes  with  the  proviso  that  nothing  therein  contained  shall 
prevent  the  teaching  in  common  schools  of  other  and  higher 
branches  than  those  specified.  By  this  proviso  all  necessary 
latitude  is  given  for  the  introduction  into  our  common 
schools  of  such  additional  or  higher  branches,  whether  of 
lanofuase  or  mathematics  etc.,  as  mav  in  given  circum- 
stances  be  deemed  advisable.  It  will  thus  be  seen  that 
while  the  German  and  other  foreign  lansuages  cannot  be 
made  the  teaching  language,  or  medium  of  communication 
in  our  schools,  vet  thev  may  be  introduced  and  taught  to 
any  necessary  extent  through  the  medium  of  English,  the 
same  as  the   Latin  or  Greek   or  other  additional  branches 


10 


are  taught,  and  so  far  from  intending  to  disfontinue  the 
teaching  in  our  public  schools  of  modern  hmguages,  esj^eci- 
ally  the  grand  rich  old  german  tongue,  I  would  earnestly 
encourage  the  teaching  of  that  language  whereever  circum- 
stances will  admit  and  expediency  recommend  the  same  to 
be  done." 

This  construction  is  of  course  not  binding  upon  the 
Courts,  but  the  high  character  of  this  functionary  for  in- 
telligence and  learning  entitles  it  to  great  weight. 

This  construction  being  given  fifteen  years  ago  by  one 
who  by  law  was  authorised  to  give  advice  and  to  interpret 
the  school  laws,  and  having  been  published  all  over  the 
state,  it  is  strange  indeed,  that  if  wrong  it  has  never  since 
been  questioned,  and  that  the  Legislature  has  not  deemed 
fit  to  change  the  law  in  that  respect,  if  as  complainants 
content,  the  law  as  so  construed  were  against  public  policy. 

Mr.  Harris,  the  eminent  Superintendent  of  the  Public 
Schools  in  St.  Louis,  places  his  advocacy  of  having  the 
German  taught  in  the  Public  Schools  upon  the  ground 
amongst  others,  that  it  was  the  best  public  policy.  That 
were  the  teachins-  of  German  forbidden,  thousands  of 
german  children  would  be  taken  off  the  public  schools  and 
would  fail  to  identify  themselves  as  they  should  with  the 
American  nation.  He  as  well  as  the  President  of  the  School 
board  in  Cincinnati  (Sands)  in  his  last  annual  report,  attest 
to  the  remarkable  fact,  that  the  scholars  who  learn  English 
and  German  at  the  same  time  were  for  their  age  much 
further  advanced  than  those  w^ho  study  English  alone. 

We  can  hardly  treat  seriously  the  argument  of  appel- 
lants' counsel,  that  in  as  much  as  some  time  is  devoted  to 
■the  teaching  of  the  German,  the  expenses  of  the  school  are 
thereby  increased,  although  no  additional  compensation  is 
paid  to  those  teachers  who  instruct  in  that  language.  It 
must  be  recollected  that  the  attendance  on  the  german  les- 
son is  optional,  and  those  who  do  not  attend,  do  not  sit 


11 

idle  but  pursue  their  other  studies,  while  those  who  do  at- 
tend learn  something  considered  very  valuable  by  the  school- 
board  in  lieu  of  what  they  may  mis.s. 

In  the  case  of  McCormick  vs.  Burt,  supra,  the  same 
objection  as  to  loss  of  time  might  have  been  urged.  In  that 
case  the  Supreme  Court  decided  that  the  school-board  had 
the  right  to  expel  a  catholic  boy,  who,  the  attendance  being 
optional,  did  not  lay  aside  his  books  and  pursued  his  stud- 
ies, while  a  chapter  from  King  James'  translation  of  the 
Bible  was  read.  iVow  the  reading  of  a  chapter  of  King 
James'  translation  of  the  Bible  (not  exceeding  15  minutes, 
as  the  rule  prescribed)  is  not  one  of  the  enumerated  branches 
of  teaching,  and  as  it  took  time  from  other  studies,  it  would 
according  to  the  nice  calculations  made  by  appellants  coun- 
sel unnecetjsarily  increase  the  ourden  of  the  tax  payers.  But 
this  brioht  idea  does  not  seem  to  have  struck  the  counsel 
who  argued,  nor  the  Court  who  decided  the  case. 

Much  labor  is  bestowed  by  appellants' s  counsel  upon 
the  point,  that  such  other  branches,  which  the  school-board 
may  direct  to  be  taught,  cannot  possibly  embrace  the 
German  language.  They  think  that  it  is  no  branch  of  edu- 
cation, or  at  least  of  •c\nE)iglisli  education/  Here  again  we 
meet  with  the  interpolation  of  the  word  "English",  no- 
where to  be  found  in  the  law,  and  as  we  have  said  before, 
if  it  w^ere  in  the  law  it  would  not  strenghten  their  position. 
Those  branches,  they  say,  must  be  of  the  "same  kind", 
must  be  "the  same  as  has  been  mentioned"  which  is  the  de- 
linition  of  "5^^t7i",  as  stated  by  Webster.  They  pay  no 
attention  to  the  word  "o^Aer"  at  all.  What  the  other 
branches  are  is  to  be  left  to  the  discretion  of  the  board, 
within  reasonable  limits,  as  we  have  shown  before,  andean 
not  depend  upon  the  notions  of  uneducated  or  half  educated 
men  of  whom  a  majority  of  taxpayers  may  consist.  The 
law  has  given  that  discretion  to  the  board,  and  there  it  must 
remain,  unless  the  Legislature  sees  proper  to  restrict  it. 


12 

III  the  case  of  Kulison  el  al.  vs.  Post,  aliemiy  cited,  the 
Court,  while  holding  that  i)ii[)ils  could  not  l)e  compelled  to 
attend  to  other  branches  not  enumerated,  yet  decided  that 
the  Board  had  authority'  to  prescril)e  what  they  should  be. 
In  that  case  the  disputed  branch  in  question  was  "l)ook- 
keeping",  which  certainly  is  not  the  "same"  as  the  enum- 
erated branches,  "the  same  as  mentioned  before",  but  is 
other  than  those  enumerated. 

»  But  we  deem  it  unnecessary  to  explain  what  is  so  plain, 
but  will  merely  remark  in  passing  that  the  appellants 
counsel  several  times  speaks  of  branches  of  a  German  edu- 
cation, as  taught  in  the  Belleville  schools,  while  there  is 
simply  given  one  german  lesson  per  day.  How  a  lanirua^e 
could  be  taught  without  teaching  its  orthography,  its  gram- 
mar, the  mode  of  reading  and  writing  it,  we  fail  to  under- 
stand. Those  various  exercises  are  not  branches  of  a 
german  education,  but  only  one  branch  of  the  school  edu- 
cation. 

The  counsel  for  appellants  cite  the  case  of  Kichards  vs. 
Raymonds,  92  111.  612,  and  seem  to  draw  from  it  the  con- 
clusion that  teaching  German  in  a  common  school  would  be 
unconstitutional.  But  we  think  that  this  is  a  very  great 
mistake.  In  that  case  the  question  Mas  whether  the  law 
providing  for  high  schools  was  constitutional  or  not.  It  was 
contended  that  the  article  VIII  sect.  1  of  the  Constitution 
which  provides  that  "the  General  Assembly  shall  provide  a 
thorough  and  efficient  system  of  free  schools,  whereby  all 
children  of  this  state  may  receive  a  good  common  school 
education,"  was  a  limitation  on  the  power  of  the  Legis- 
lature, and  that  none  but  ordinary  common  schools  could 
be  created  under  this  section  of  the  Constitution.  In  the 
case  before  the  Court  almost  innumerable  branches  of  learn- 
ing were  taught  in  the  High  School  in  question  amongst 
others  Philosophy  (whatever  that  may  mean),  Botanv, 
Rhetoric,    Latin,    Chemistry,    Astronomy,  Greek,    French 


13 

and  German.  Yet  the  Court  decided  that  the  High  School 
hiw  was  not  unconstitutional,  that  the  lano;uao;e  of  theCon- 
stitution  was  hroad  enough  to  include  Hioh' Schools  in  its 
term  of  "Free  Schools",  and  in  doing  so  the  Court  sa}^ : 

"No  definition  of  Common  School  is  given  or  specified 
in  the  Constitution,  nor  does  that  instrument  declare  what 
course  of  studies  shall  constitute  a  common  school  edu- 
cation. How  can  it  be  said  that  a  High  School  is  prohibited 
by  the  Constitution  and  not  included  within  the  definition 
of  a  Common  School?  The  phrase  "a  common  school  edu- 
cation" is  not  easily  defined.  One  might  say  that  a  student 
instructed  in  reading,  writing,  geographj-,  english  grammar 
and  arithmetic  had  received  a  common  school  education, 
while  another  who  had  more  enlaroed  notions  on  the  sub- 
ject  might  insist  that  history,  natural  philosophy  and  al- 
gebra should  be  included.  It  would  thus  be  impossible  to 
find  two  persons  who  would  in  all  respects  agree  in  regard 
to  what  a  common  school  education  should  be.  Indeed  it- 
is  a  part  of  the  history  of  the  State,  when  the  Constitution 
was  framed,  that  there  was  a  great  want  of  uniformity  in 
the  course  of  study  prescribed  and  taught  in  the  common 
schools  of  the  state.  In  the  larger  and  more  wealth}^  counties 
the  free  schools  were  more  graded  and  the  course  of  in- 
struction of  a  high  order,  while  in  the  poorer  counties  the 
old  district  system  was  still  retained  and  the  course  of  in- 
struction prescribed  of  a  lower  order.  At  the  time  of  the 
adoption  of  the  Constitution  there  was  a  wide  difference  of 
opinion  in  different  parts  of  the  State  as  to  what  constitutes 
a  common  school  education,  and  we  apprehend  that  a  Con- 
stitution which  would  have  impaired  in  any  degree  the  free 
High  School  system  in  existence  in  many  parts  of  the  state, 
would  not  have  received  the  approval  of  the  voters  of  the 
state.  But  however  that  may  be,  w7^^7e  the  Conslitution 
has  not  defined  lohat  a  common  school  education  is  and  has 
failed  to  prescribe  a  limit,  it  is  no  part  of  the  duties  of  the 


14 

Courts  of  this  State  to  declare  by  judicial  construction 
what  particular  branches  of  study  shall  constitute  a  common 
school  education.''' 

Wc  could  not  possibly  express  ourselves  l>etter  than  the 
Supreme  Court  has  done  in  that  case,  to  sustain  our  point. 
We  will  barely  make  an  additional  remark.  When  the  Con- 
stitution of  187U  was  framed,  the  German  had  been  tausrht 
in  our  Common  Schools  and  High  Schools,  for  many  years 
in  a  large  number  of  our  cities  and  towns,  particularly  in 
Chicago,  and  a  large  number  of  citizens  would  never  have 
voted  for  the  Constitution,  if  they  had  construed  it,  as  the 
counsel  for  appellants  wish  to  do. 

We  have  already  referred  to  the  Missouri  case,  Roach 
vs.  Board  of  Education.  The  constitutional  question  was 
also  made  there,  the  Constitution  of  Missouri  providing  that 
the  General  Assembl}'  shall  establish  and  nniintain  Free 
Public  Schools  (Constitution  of  187.^,  Article  XI ).  We 
have  already  seen,  that  Public  schools  mean  Cotnmon 
schools.  Yet  the  Court  held  that  this  article  was  no  rest- 
riction on  the  School-board  in  the  City  of  St.  Louis,  to  pro- 
vide for  schools  of  a  higher  grade,  and  for  teaching  German 
even  in  the  lower  grade.  The  Legislature  of  Missouri  under 
a  similar  provision  of  the  former  Constitution  has  provided 
by  law  (acts  18G0  p.  90)  that  all  teachers  in  the  public 
schools  should  be  required  to  understand  the  English  lang- 
uage, and  that  where  other  languages  are  taught  the  Englich 
lano'uaire  shall  be  the  medium  of  communication.  In  18G5 
it  was  provided,  that  the  Township  board  might  provide  for 
instruction  in  any  of  the  modern  languages  in  any  of  the 
schools  of  their  respective  townships,  if  they  deem  it  ad- 
visable (Acts  of  1865,  adjourned  session  p.  175).  Now  all 
this  legislation  shows  most  clearly  that  the  provision  of  the 
Constitution,  almost  identical  with  our  own,  was  not  con- 
sidered as  an  obstruction  to  teach  a  modern  language  in  a 
common  school,  and  also  proves  that  the  people  of  Missouri 


15 

hold  different  views  as  to  the  usefulness  of  such  a  study 
from  those  of  the  appellants.  These  school  laws  of  Missouri 
apply  to  the  state  at  large,  and  not  to  the  City  of  St.  Louis, 
which  as  remarked  before  has  a  special  act  concerning  its 
schools. 

While  the  Legislature  of  Missouri  has  implicitly  allowed 
the  teaching  of  modern  languages,  our  Legislature  has  de- 
legated that  power  in  the  most  general  terms  to  the  Board 
of  School  Directors,  in  allowing  them  to  select  other 
branches,  in  either  case  without  violating  the  constitutional 
provision. 

The  same  question  as  to  high  schools  being  unconstitu- 
tional came  before  the  Supi;eme  Court  of  Michigan.  The 
provision  of  the  Constitution  of  Michigan  is  peculiar  and 
seems  to  be  rather  restrictive.  It  reads  as  follows,  Article 
13.  Education  :  "The  Legislature  shall  within  five  years 
provide  for  and  establish  a  system  of  primary  schools 
whereby  a  school  shall  be  kept  without  charge  of  tuition  at 
least  3  months  in  each  year  in  every  school  district  in  the 
State,  and  all  instruction  in  said  schools  shall  be  conducted 
in  the  English  languaoe." 

Under  this  clause  the  Supreme  Court  of  Michigan,  in 
the  case  of 

Stewart  vs.  School  District,  30  Mich.  69, 
decided,  Judge  Cooley  delivering  the  opinion,  that  the 
Legislature  could  provide  for  other  than  primary  schools, 
and  could  provide  for  graded  and  high  schools.  The 
Supreme  Court  of  Michigan  goes  further  than  our  Supreme 
Court.  It  does  not  look  upon. this  provision  of  the  Consti- 
tution as  a  limitation^  but  as  mandatory,  securing  by 
Constitutional  provisions  at  least  a  minimum  of  instruction 
to  all  classes  of  the  people  free  of  charge.  It  is  well 
known  that  in  many  States  the  free  school  system  was  a 
very  mooted  question,  and  many  plausible  reasons  were 
urged  against  it.     Some  protestant   denominations,  as  well 


16 

as  the  entire  catholic  church,  couutinu:  it?*  iiiillion.s  of 
votaries,  seriously  oppose  the  free  school  law  system, 
desirinjr  nH  schools  to  be  confessional  schools. 

To  take  this  exciting  question  awaj  from  ever  fiuctu- 
atinir  lejiislative  action,  Constitutional  ijrovisions  were 
enacted  guaranteing  instruction  in  the  i)uhlic  schools  free 
to  every  child  in  the  land. 

Judge  Cooly  says  Page  80  :  "While  the.  Legislature 
was  required  to  make  provisions  for  district  schools  at  least 
three  months  every  year,  no  restriction  was  imposed  upon 
its  power  to  establish  schools  intermediate  the  connnoii 
district  schools  and  the  university,  and  we  find  nothing  to 
indicate  an  intent  to  limit  their  diserection  as  to  the  class  or 
grade  of  schools  or  as  to  the  range  of  studies  or  grade  of 
instruction  loliich  might  be  provided  for  the  district  schools. 

While  every  provision  of  a  constitution  in  a  general 
sense  may  be  called  a  limitation  upon  the  constituted  state 
authorities,  to  which  it  may  refer,  in  a  more  accurate  and 
technical  sense,  there  are  many  provisions  which  are  not 
limitations  or  restrictions.  Some  are  mandatory,  requiring 
a  certain  action  on  a  certain  subject.  But  such  special  action 
by  no  means  exhausts  the  whole  sul)ject,  and  leaves  it  ex- 
cept as  to  the  special  provision  under  the  control  of  the 
general  legislative  power.  A  constitution  may  for  instance 
require  a  legislature  to  charter  no  corporation  without  pro- 
viding for  personal  responsibilit}^  of  its  stock  holders.  Yet 
there  is  no  question  that  the  legislature  might  lay  the  stock, 
holders  under  additional  restrictions.  A  constitution  may 
provide  as  ours  has  done^  for  the  enactment  of  a  general 
Banking  law  or  Railroad  law,  and  at  the  same  time  require 
that  certain  limitations  and  restrictions  shall  be  inserted  in 
such  laws,  yet  those  mandatory  provisions  would  not  ex- 
haust the  subject,  and  the  legislature  in  its  sovereign  cap- 
acity could  add  many  other  restrictive  provisions. 

The    constitution   of    1848    contained    almost    a   little 


17 

special  code  to  enable  delinquent  tax  payers  to  keep  their 
lands  and  to  protect  them  from  sale.  But  is  there  any  doubt 
but  that  the  legislature  could  have  added  additional  pro- 
visions, provided  they  did  not  come  in  conflict  with  the 
coustitutionl  provisions  ? 

So  we  say  that  even  if  the  coustiution  had  only  pro- 
vided for  schools  of  the  most  primary  character,  the  legis- 
lature could  have  provided  for  a  higher  education  in  those 
schools  or  in  high  schools,  as  it  had  done  before  under  the 
Constitution  of  1848,  which  did  not  contain  a  constitutional 
provision  in  regard  to  the  establisment  of  common  schools 
at  all. 

A  similar  decision  was  made  in  Massachussetts, 
Cushing  vs.  Inhabitants  of  Newbuiyport, 

10  Metcalf,  508. 

Judge  Shaw  delivered  the  opinion  of  the  Court. 

We  do  not  wish  to  extend  this  brief,  but  refer  the 
Court  to  the  decision  itself,  quoting  but  one  passage  : 

"The  description  of  schools  which  the  law  required 
towns  to  maintain  was  not  a  description  of  those  which  alone 
it  had  the,  power  to  support  at  the  common  expense.  That 
Townships  having  by  other  laws  authority  to  expend  monej^ 
for  public  instruction,  the  general  school  law  estal)lishing 
mere  ordinary  town  schools  during  a  limited  period  of  the 
year,  was  not  a  limit  to  their  power  to  estaljlish  schools 
for  longer  periods  and  extending  to  instructions  in  branches 
of  knowledge  beyond  those  required  by  statute.'" 

But  taking  even  the  view  that  our  Supreme  Court  has 
expressed  in  the  case  of  Ejchards  vs.  Kaj'mond,  and  on 
which  the  case  did  not  turn,  under  the  broad  construction 
given  to  the  Constitution  by  that  Court,  that  decision 
amply  bears  out  our  position,  that  neither  the  Constitution 
nor  the  laws  of  our  State  forbid  the  teaching  of  the  German 
or  any  other  modern  languaire  to  be  tausfht  throui>h  the 
medium  of  English  in  our  public  schools,  and   that  the  de- 


18 

feudants  have  not  "violated  the  hiw",  or  "fhigrantly 
evaded  it,"  as  the  appelhmts'  counsel  in  their  misguided 
zeal  have  charged,  but  have  carried  it  out  in  good  faith  the 
same  way  their  predecessors  have  done  for  nearly  twenty 
years  past,  and  have  been  therein  supported  by  a  large 
majority  of  the  citizens  and  tax  paj^ers  of  that  district. 

G.  &  G.  A.  KOERNER, 

for  appellees,  the  Board  of  Education. 


ff 


